United States v. Amazan-Becerra ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10056
Plaintiff-Appellee,
v.  D.C. No.
CR-03-40212-DLJ
JULIO ALMAZAN-BECERRA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
February 16, 2006—San Francisco, California
Filed August 1, 2006
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
8541
UNITED STATES v. ALMAZAN-BECERRA 8543
COUNSEL
Donald W. Searles, Fenwick & West LLP, San Francisco,
California, for defendant-appellant Julio Almazan-Becerra.
8544 UNITED STATES v. ALMAZAN-BECERRA
Barbara J. Valliere, Assistant United States Attorney, San
Francisco, California, for the plaintiff-appellee.
OPINION
WALLACE, Senior Circuit Judge:
Almazan-Becerra appeals from his sentence of seventy
months imprisonment following a conviction of illegal reentry
following deportation in violation of 8 U.S.C. § 1326. He
argues that application of a sixteen-level enhancement for a
prior felony drug conviction was erroneous. We have jurisdic-
tion pursuant to 18 U.S.C. § 3742(a). We vacate the sentence
and remand for resentencing.
I.
Almazan-Becerra is a Mexican national who has previously
been deported from the United States on three occasions: May
14, 1992, October 31, 1997, and September 12, 2002. On Sep-
tember 3, 2003, he was found in Northern California and later
identified by his fingerprints. He was charged with and con-
victed of illegal re-entry, 18 U.S.C. § 1326. He does not
appeal from that conviction. Rather, he contends that he was
improperly sentenced based on two potentially relevant prior
convictions.
In January 1995, Almazan-Becerra was convicted of violat-
ing California Health & Safety Code § 11360(A), a felony
drug offense, for conduct involving marijuana. In 1998, he
was convicted of violating California Health & Safety Code
§ 11379, a felony drug offense, for transporting methamphet-
amine.
The 1995 conviction was based on an indictment that twice
charged that Almazan-Becerra committed “the crime of
UNITED STATES v. ALMAZAN-BECERRA 8545
TRANSPORT/SELL/OFFER TO SELL MARIJUANA.” The
indictment also stated that Almazan-Becerra “did sell and
offer to sell a controlled substance . . . .” Almazan-Becerra
agreed to plead guilty to the crime. At the plea colloquy,
Almazan-Becerra twice admitted that he did “either transport
or sell or offer to sell marijuana . . . .” He was later asked “do
you admit . . . that you did sell, transport or sell marijuana
. . .” to which he answered “Yes.” Almazan-Becerra’s counsel
stipulated that the related police reports contained a factual
basis to support his guilty plea. He was sentenced to twenty-
four months in prison.
The 1998 conviction was based on an amended charge that
Almazan-Becerra committed the “crime of transport of a con-
trolled substance . . . to wit, methamphetamine.” During the
plea colloquy, the presiding judge stated, “It’s alleged that
you did transport a controlled substance, methamphetamine.
To that charge how do you plead?” Almazan-Becerra
answered, “Guilty.” The court imposed a twelve-month sen-
tence.
In the case before us, the district court sentenced Almazan-
Becerra two days after the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). In its remedial holding,
the Court in Booker had severed the mandatory aspect of the
Sentencing Guidelines (Guidelines) and had rendered them
“effectively advisory.” Id. at 245. The district court properly
recognized that the Guidelines were not mandatory.
At sentencing, neither party challenged the district court’s
determination that Almazan-Becerra’s base offense level was
eight. The district court then applied a sixteen-level enhance-
ment, based on its determination that the 1995 conviction
qualified as “a drug trafficking offense for which the sentence
imposed exceeded 13 months” under U.S.S.G.
§ 2L1.2(b)(1)(A).
The district court decided to make a downward departure
based on the relatively minor nature of the 1995 conviction,
8546 UNITED STATES v. ALMAZAN-BECERRA
which involved two sales of marijuana for approximately fif-
teen dollars each. The court also departed downward four
levels, based on its belief that the 1998 conviction would have
required a twelve-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(B) as a “conviction for a felony drug trafficking
offense for which the sentence imposed was 13 months or
less,” if the sixteen-level enhancement had not applied.
Almazan-Becerra argues that neither conviction qualifies
for a drug trafficking enhancement. He also contends that the
fact of the prior convictions must be submitted to a jury and
found beyond a reasonable doubt.
II.
[1] To determine whether a prior conviction qualifies for an
enhancement, we apply the Taylor modified categorical
approach. See United States v. Navidad-Marcos, 367 F.3d
903, 908 (9th Cir. 2004); see also Taylor v. United States, 495
U.S. 575 (1990). Under this standard, “we must first analyze
the statute that formed the basis for the sentence enhance-
ment.” United States v. Rivera-Sanchez, 247 F.3d 905, 908
(9th Cir. 2001) (en banc). We have previously held that sec-
tions 11360(a) and 11379(a) of the California Health & Safety
Code were overbroad and did not categorically qualify for
drug trafficking enhancements. See Navidad-Marcos, 367
F.3d at 907-08 (Cal. Health & Safety Code § 11379(a) over-
broad); Rivera-Sanchez, 247 F.3d at 908-09 (Cal. Health &
Safety Code § 11360(a) overbroad). In those cases, we specif-
ically identified transportation of and offers to sell narcotics
as being outside the scope of the drug trafficking enhance-
ments. See Navidad-Marcos, 367 F.3d at 908; Rivera-
Sanchez, 247 F.3d at 908-09.
Because a conviction under these statutes does not neces-
sarily qualify for the enhancement, we must look to the
“charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
UNITED STATES v. ALMAZAN-BECERRA 8547
judge to which the defendant assented” to determine if a prior
conviction qualifies for an enhancement. Shepard v. United
States, 544 U.S. 13, 16 (2005). “Taylor is clear that any
enquiry beyond statute and charging document must be nar-
rowly restricted to implement the object of the statute and
avoid evidentiary disputes.” Id. at 23 n.4.
“The idea of the modified categorical approach is to deter-
mine if the record unequivocally establishes that the defen-
dant was convicted of the generically defined crime, even if
the statute defining the crime is overly inclusive.” United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.
2002) (en banc). “Charging papers alone are never sufficient.”
Id.
III.
[2] One issue raised in the briefs need not be decided by us.
At oral argument, the government wisely conceded that the
1998 conviction does not qualify for the twelve-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(B). The rationale
for this conclusion is simple: Almazan-Becerra specifically
pled guilty to transporting drugs, which we have held does not
qualify for a drug trafficking enhancement. See Navidad-
Marcos, 367 F.3d at 908.
Almazan-Becerra contends that the district court abused its
discretion by basing the extent of its downward departure on
the erroneous legal assumption that the 1998 conviction mer-
ited the twelve-point enhancement. Although we have held
that we lack jurisdiction to review the extent of a downward
departure, see United States v. Vizcarra-Angulo, 904 F.2d 22,
23 (9th Cir. 1990), here the extent of the departure was
explicitly premised on “an incorrect application of the sen-
tencing guidelines,” 18 U.S.C. § 3742(a), and we therefore
have jurisdiction to consider Almazan-Becerra’s argument.
See id. We review the extent of a sentencing departure for an
abuse of discretion. See United States v. Menyweather, 431
8548 UNITED STATES v. ALMAZAN-BECERRA
F.3d 692, 701 (9th Cir. 2006), amended by 2006 WL 1228940
(9th Cir. May 9, 2006) (“Even before Booker, our task was to
determine whether the extent of a departure was reasonable,
so our cases applying abuse of discretion review to that ques-
tion remain relevant after Booker”). The district court “is
required to articulate the reasons for the extent of the depar-
ture in sufficiently specific language to allow appellate
review. On appeal we may not search the record for the possi-
ble reasons for departure; instead, we must rely solely on the
reasons expressed by the court below.” United States v. Work-
ing, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (internal
quotations and citations omitted). “A district court by defini-
tion abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996).
[3] The district court’s decision to depart four levels down-
ward was a legal error, and therefore the court abused its dis-
cretion. At resentencing, if the district court decides to make
a downward departure, it may not rely on the legally errone-
ous premise that the 1998 conviction qualifies for a twelve-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(B).
IV.
A.
Almazan-Becerra next argues that the district court erred by
applying the sixteen-level enhancement for his 1995 convic-
tion. We review the district court’s conclusion that a prior
conviction qualifies for a sentencing enhancement de novo.
Rivera-Sanchez, 247 F.3d at 907.
Almazan-Becerra contends that because the indictment and
plea colloquy were repeatedly stated in the disjunctive, they
do not “unequivocally establish” that he is guilty of conduct
that qualifies for the enhancement. See Corona-Sanchez, 291
F.3d at 1211. He argues that because he twice pleaded guilty
to “either transport[ing] or sell[ing] or offer[ing] to sell mari-
UNITED STATES v. ALMAZAN-BECERRA 8549
juana,” his guilty plea does not “unequivocally establish” that
he pleaded guilty to selling marijuana. The district court held
that these statements meant that he “pled guilty to all of
those.”
[4] We have previously held that “when a defendant pleads
guilty . . . to facts stated in the conjunctive, each factual alle-
gation is taken as true.” United States v. Smith, 390 F.3d 661,
665 (9th Cir. 2004) (internal quotations and citation omitted),
amended by 405 F.3d 726 (9th Cir. 2005), cert. denied, 126
S. Ct. 252 (2005). This appeal requires us to consider whether
the same is true in a disjunctive plea. Because Almazan-
Becerra pled to the disjunctive “either transport[ing] or sell-
[ing] or offer[ing] to sell marijuana,” he could have pled
either to transportation or to solicitation, neither of which
qualifies for the enhancement. A plea to selling marijuana is
only one possible interpretation of these statements. We there-
fore hold that this disjunctive guilty plea does not “unequivo-
cally establish” that Almazan-Becerra committed a drug
trafficking crime.
[5] Similarly, the use of the virgule (/) sign in the indict-
ment indicates that Almazan-Becerra was charged in the dis-
junctive. Although the indictment also uses a conjunctive
statement, that Almazan-Becerra “did sell and offer to sell a
controlled substance” as observed earlier, “[c]harging papers
alone are never sufficient.” Corona-Sanchez, 291 F.3d 1201
at 1211. Moreover, given the two immediately preceding uses
of the disjunctive, the indictment is not unequivocally clear.
Thus, the plea colloquy and indictment cannot support appli-
cation of the enhancement to Almazan-Becerra.
The government tried to save the enhancement at oral argu-
ment by pointing to a statement of the counsel of Almazan-
Becerra suggesting that the charged conduct involved sales.
This argument is waived, however, both for the government’s
failure to raise it in its opening brief, see Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999) (“on appeal, arguments not
8550 UNITED STATES v. ALMAZAN-BECERRA
raised by a party in its opening brief are deemed waived”),
and for its failure to raise it before the district court, see Mon-
etary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir.
1995) (“As a general rule, an appellate court will not consider
arguments which were not first raised before the district court,
absent a showing of exceptional circumstances”) (internal
quotations and citation omitted).
B.
The government argues that police reports concerning the
1995 conviction could serve as a valid basis for applying the
enhancement. The district court chose not to reach this issue.
[6] The Supreme Court appears to have foreclosed the use
of police reports in Taylor analysis. See Shepard, 544 U.S. at
16 (“The question here is whether a sentencing court can look
to police reports or complaint applications . . . . We hold that
it may not”). In a post-Shepard case, however, we held that
when a defendant stipulates to a document as providing a fac-
tual basis for a guilty plea, the court may sometimes use the
factual statements therein to determine whether a prior con-
viction qualifies for an enhancement. See United States v.
Hernandez-Hernandez, 431 F.3d 1212, 1217-19 (9th Cir.
2005). In that case, the defendant stipulated that his own prior
motion authored and filed by his attorney, which contained a
statement of facts admitting to the relevant conduct, formed
a factual basis to support his guilty plea. See id. at 1215-16.
We observed “no appreciable difference between allowing the
district court to rely on the stipulated 995 Motion which
served as the factual basis for the plea and allowing prior sen-
tencing courts to rely on a plea agreement or the transcript of
a plea colloquy.” Id. at 1218.
[7] Two important factors are different between the present
appeal and Hernandez-Hernandez. First, although Almazan-
Becerra stipulated that the police reports formed a factual
basis to support his plea, the plea was disjunctive. He there-
UNITED STATES v. ALMAZAN-BECERRA 8551
fore could have been stipulating that the police reports sup-
ported a plea to transporting or offering to sell marijuana. As
such, the stipulation does not “unequivocally establish” a fac-
tual basis for selling marijuana.
[8] Second, the stipulated document in Hernandez-
Hernandez was the defendant’s own motion, containing his
attorney’s account of disputed facts. We therefore reasoned
that it was the equivalent to a plea agreement or plea collo-
quy. Id. at 1218. The police reports here, however, do not nec-
essarily contain either the defendant’s own account of the
events, or a mutually agreed-upon statement of facts. There-
fore, the police reports are not the functional equivalent of
either a plea agreement or plea colloquy.
If the government on remand continues to assert that the
police reports, which Almazan-Becerra’s counsel stipulated
constituted a factual basis for his disjunctive plea, support
application of the enhancement, the district court will need to
determine whether this case can be distinguished from United
States v. Shepard.
V.
Almazan-Becerra also argues that because a majority of
justices now appear to believe that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), was wrongly decided, see
Shepard, 544 U.S. at 27-28, (Thomas., J., concurring)
(expressing the view that “a majority of the Court now recog-
nizes that Almendarez-Torres was wrongly decided”);
Almendarez-Torres, 523 U.S. at 248-49 (Scalia, J., joined by
Stevens, Souter, and Ginsburg, JJ., dissenting), we should
hold that the fact of a prior conviction must be submitted to
a jury and proved beyond a reasonable doubt. However, we
have expressly considered and rejected the argument. See
United States v. Weiland, 420 F.3d 1062, 1080 n.16 (9th Cir.
2005) (“Although recent Supreme Court jurisprudence has
perhaps called into question the continuing viability of
8552 UNITED STATES v. ALMAZAN-BECERRA
Almendarez-Torres, we are bound to follow a controlling
Supreme Court precedent until it is explicitly overruled by
that Court”) (citation omitted). Thus, this argument is fore-
closed.
SENTENCE VACATED AND REMANDED.